CASE OF PÁDEJ v. SLOVAKIA

THIRD SECTION

CASE OF PÁDEJ v. SLOVAKIA

(Application no. 74175/17)

JUDGMENT
 

STRASBOURG

13 October 2020

This judgment is final but it may be subject to editorial revision.

In the case of Pádej v. Slovakia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Dmitry Dedov, President,
Alena Poláčková,
Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 74175/17) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Ivan Pádej (“the applicant”), on 10 October 2017;

the decision to give notice of the application to the Slovak Government (“the Government”);

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 22 September 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The applicant complained, in particular, that the quashing, upon an extraordinary appeal on points of law lodged by the Prosecutor General, of a final and binding decision in his favour had been contrary to his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

THE FACTS

2.  The applicant was born in 1947 and lives in Považská Bystrica. He was represented by Mr R. Fatura, a lawyer practising in Považská Bystrica.

3.  The Government were represented by their Agent, Ms M. Pirošíková, and her co-agent Ms M. Bálintová.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

The circumstances of the caseInsolvency proceedings before the ordinary courts

5.  By a decision of 8 August 1997, the Banská Bystrica Regional Court (Krajský súd – “the Regional Court”) declared insolvent (konkurz) an agricultural cooperative, D. (“the insolvent party”), and requested its creditors to submit their claims (nárok) in the framework of the insolvency proceedings no later than thirty days from the adoption of the decision. The applicant, a lawyer, was appointed as the insolvency administrator (správca konkurznej podstaty).

6.  On 28 January 1999 the Regional Court held an examination hearing (prieskumné pojednávanie) to examine the claims that had been submitted in time by the creditors, and the amounts of those claims. Several additional hearings took place in the following years (on 20 January 2003, 19 December 2005, 28 May 2007 and 30 January 2009).

7.  On 13 January 2011 the Regional Court approved the applicant’s final report on the liquidation of the insolvent party’s assets (konečná správa o speňažení majetku z konkurznej podstaty). The report included a calculation of the applicant’s remuneration (odmena) for the work carried out in the amount of 139,376.80 euros (EUR). It had been calculated by the applicant in accordance with Article 7 § 1 of Decree no. 493/1991 Coll. on the enforcement of certain provisions of the Insolvency Act (vyhláška Ministerstva spravodlivosti Slovenskej republiky č. 493/1991 Zb., ktorou sa vykonávajú niektoré ustanovenia zákona o konkurze a vyrovnaní – “the Decree”), as applicable before its amendment by two subsequent decrees (Decree no. 389/2001 Coll., in force as of 29 September 2001, and Decree no. 398/2001 Coll., in force as of 8 October 2001 – “the amendments”). This calculation, and hence the application of the “pre-amendment” version of the Decree, was accepted by the Regional Court as being correct.

8.  One of the insolvent party’s creditors, C.E.F.M., a private joint-stock company with its seat in Prague (“the creditor”), appealed against the decision (odvolanie), challenging the amount of the remuneration calculated by the applicant, which in its view infringed the property rights of the creditors. It referred to the amended Decree, which had altered the way of calculating insolvency administrators’ remuneration (the amendment in force as of 29 September 2001) and which was applicable in cases where the examination hearing had not ended prior to 8 October 2001 (the amendment in force as of 8 October 2001). Relying on a Supreme Court decision (no. 4 Obo 40/2004 of 17 February 2004), according to which an examination hearing was concluded upon the examination of the last claim submitted in time, the creditor argued that in the present case the examination hearing had not ended before 8 October 2001, the last claim having been examined on 30 January 2009. Therefore, in its view, the Regional Court should have applied the amended provisions and granted the applicant EUR 66,880.44.

9.  On 31 August 2011 the Supreme Court (Najvyšší súd) upheld the decision of the Regional Court, endorsing its reasoning. It ruled that the regular examination hearing had taken place on 28 January 1999, that is, before the amendments had come into force. Therefore, the Regional Court had correctly applied the legislation in force prior to those amendments when determining the amount of the applicant’s remuneration.

10.  According to the applicant, the remuneration was paid to him in January 2012.

11.  After the Supreme Court’s decision became final, on 31 May 2012 the Regional Court adopted a “distribution decision” (rozvrhové uznesenie), specifying how the liquidated assets were to be distributed among the creditors in order to satisfy their individual claims. That decision, partially rectified by a decision of 14 June 2012 (opravné rozvrhové uznesenie), was upheld by the Supreme Court on 14 December 2012.Extraordinary review

12.  On 3 October 2012 the Prosecutor General lodged an extraordinary appeal on points of law (mimoriadne dovolanie) on behalf of the creditor, challenging the courts’ decisions of 13 January and 31 August 2011. He argued that the courts had breached the law by failing to correctly determine the exact date of the conclusion of the examination hearing. He submitted that all the individual hearings that had taken place between 28 January 1999 and 30 January 2009 represented a unified process with the aim of examining the creditors’ claims. This process had ended on 30 January 2009, the date of the last additional examination hearing. Hence, the courts had erred by applying the provisions in force prior to the amendments when determining the amount of the applicant’s remuneration.

13.  The Supreme Court invited the applicant and the creditor to submit their observations.

The applicant contested the Prosecutor General’s reasoning, arguing that it was entirely incorrect and contrary to the prohibition on the retroactive application of the law. He argued that insolvency proceedings were to be carried out in accordance with the law in force at the time when the insolvent party had been declared insolvent. He also complained of the excessive length of the insolvency proceedings. Referring to the final and partially enforced distribution decision (in application of which he had already satisfied certain creditors’ claims), the applicant proposed that the Prosecutor General’s extraordinary appeal be dismissed as manifestly ill‑founded.

The creditor fully endorsed the Prosecutor General’s reasoning and reiterated its previous arguments, according to which the applicant had enriched himself to its detriment as a result of the incorrect application of the domestic law.

14.  On 13 December 2016 the Supreme Court allowed the extraordinary appeal, quashed the two impugned decisions and remitted the case for fresh consideration. It also quashed the distribution decision, as rectified on 14 June 2012 and upheld by the Supreme Court on 14 December 2012, since it was directly dependent on the impugned decisions.

The Supreme Court emphasised that an extraordinary appeal on points of law was to be used only in exceptional cases, as it represented an exception to the principle of legal certainty. It found that in the circumstances of the case before it the remedy was procedurally admissible, as no other remedies were available to the creditor (the Insolvency Act ruled out the possibility of lodging an ordinary appeal on points of law).

The Supreme Court highlighted the aim of insolvency proceedings, namely to ensure proportionate satisfaction of the creditors’ claims to the greatest extent possible. It held that there could be no interference with the applicant’s right to property because the law protected only ownership that had been acquired in accordance with its correct application. The applicant, a lawyer, had been under a duty to submit his final report accordingly, that is, in compliance with the applicable law. Under these circumstances, the protection of the property rights of the creditors outweighed the premise that final judgments should not be quashed.

The Supreme Court found that the last claim had been addressed at the additional examination hearing of 30 January 2009, which was the relevant date for the determination of the applicable law. The courts had failed to apply the amended Decree and had violated the rights of the creditors.

15.  The Supreme Court’s decision was served on the applicant on 27 January 2017. The further course of the insolvency proceedings is described in paragraphs 18 et seq. below.Constitutional complaint

16.  On 28 March 2017 the applicant lodged a constitutional complaint, invoking his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. He challenged the reasons given by the Supreme Court to justify the quashing of a final and enforceable decision in his favour, and complained of the length of the proceedings before the Supreme Court.

17.  By a decision of 19 April 2017 (III. US 264/2017), the Constitutional Court dismissed the applicant’s complaint as manifestly ill‑founded. It ruled that, in its decision of 13 December 2016, the Supreme Court had acted in accordance with the law, had addressed his arguments and had provided adequate reasoning. It dismissed the applicant’s complaint concerning the length of the proceedings before the Supreme Court on the grounds that he had failed to substantiate his allegations and had failed to complain while those proceedings had still been pending before that court.Further course of the proceedings

18.  Following the quashing of the decisions of 13 January and 31 August 2011 (see paragraph 14 above), the case was remitted to the Regional Court for re-examination in the light of the conclusions reached by the Supreme Court.

19.  By a decision of 14 November 2018, the Regional Court approved the applicant’s final report with some alterations; in particular, it increased the amount of the liquidated assets to be distributed among the creditors and reduced the amount of remuneration for the work carried out by the applicant, calculating it at EUR 59,910.30. The applicant was asked to return the difference in the amounts. The decision was upheld on appeal by the applicant and became final on 20 August 2019.

20.  The Constitutional Court dismissed a second constitutional complaint by the applicant against the courts’ decisions as manifestly ill‑founded (I. US 330/2019).

21.  On 17 June 2019 the Regional Court adopted a new distribution decision. On 23 October 2019 the Supreme Court quashed it on grounds unrelated to the calculation of the applicant’s remuneration and the relevant part of the case was remitted back to the Regional Court.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

22.  The relevant domestic law and practice and European texts have been summarised in the Court’s judgments in, inter alia, DRAFT - OVA a.s. v. Slovakia (no. 72493/10, §§ 39-56 and 58-61, 9 June 2015, with further references) and Bosits v. Slovakia [Committee] (no. 75041/17, §§ 17-20, 19 May 2020).

23.  Article 449 of the new Code of Civil Contentious Procedure (Law no. 160/2015, which was adopted on 21 May 2015 and came into force on 1 July 2016) provides that if an appeal on points of law is well founded, the court will quash the impugned decision.

THE LAWALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

24.  The applicant complained that the quashing of a final decision in his favour by the Supreme Court, more than four years after it had been delivered and following an extraordinary appeal on points of law lodged by the Prosecutor General, had been contrary to the principle of legal certainty and had breached his right to a fair trial as provided in Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Admissibility

25.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions

26.  The applicant submitted that he had been a party to the insolvency proceedings inasmuch as his claim for remuneration had been at stake. He asserted that there had been no circumstances of a substantial and compelling character that could have justified the quashing, more than four years after it had been delivered, of a final decision in his favour and there had therefore been interference with the principle of legal certainty, in particular since the quashed decision had already been partially enforced. He further submitted that no arguments had been introduced in the Prosecutor General’s extraordinary appeal that had not already been the subject matter of the courts’ proceedings or that could not have been submitted in those proceedings. In his view, the Supreme Court, in its decision of 13 December 2016, and both the courts which had subsequently followed its conclusions, had applied the law retroactively, in contrast with the principles of legal certainty and the rule of law.

27.  The Government first pointed out that insolvency proceedings were a specific type of civil proceedings in which an insolvency administrator had a special procedural standing – he was a neutral expert appointed by the court to carry out functions of a public nature in accordance with the applicable rules for which he was entitled to remuneration. They submitted that the applicant had calculated his remuneration in accordance with Decree no. 493/1991 Coll. as applicable before 29 September 2001, although the last examination hearing had taken place on 30 January 2009. His failure to observe the applicable law in force had not been rectified by the courts and, in the absence of any available remedy at the creditor’s disposal, the Prosecutor General had had to intervene on the latter’s behalf. The Supreme Court had then quashed the impugned decisions because it had found that, in the circumstances of the case, the property rights of the creditors took precedence over the principle of legal certainty.

28.  The Government relied on the principles outlined in DRAFT - OVA a.s. v. Slovakia (no. 72493/10, § 77, 9 June 2015). In their view, however, the case at hand had to be distinguished from that case which had concerned civil contentious procedure and in which the Prosecutor General had lodged an extraordinary appeal on points of law on behalf of one of the parties, thus “strengthening” that party’s position in the proceedings. Conversely, in the present case, the extraordinary appeal had been lodged on behalf of one of the creditors, owing to the risk that the aim of the proceedings would be thwarted by the incorrect calculation of the applicant’s remuneration, leading to a reduction in the amount of liquidated assets to be distributed among the creditors. The quashing of the final decision had thus not meant that the applicant had no claim for remuneration, but simply that the amount had to comply with the applicable legislation.

29.  The Government therefore submitted that in the present case the quashing had been justified by circumstances of a substantial and compelling character, in particular by the need for the protection of the rights and interests of the creditors. The Supreme Court had exercised its power to quash a final decision in order to rectify a fundamental defect, which had been caused by an apparent failure to correctly apply the substantive law.The Court’s assessment

30.  The Court reiterates that for the sake of legal certainty implicitly required by Article 6 § 1 of the Convention, final judgments should generally be left intact. They may be disturbed only to correct fundamental defects, such as jurisdictional error, a serious breach of court procedure or abuses of power, which may justify the quashing (see Luchkina v. Russia, no. 3548/04, § 21, 10 April 2008). Departures from the principle of legal certainty are thus justified only when made necessary by circumstances of a substantial and compelling character, the existence of which has to be examined on a case-by-case basis (see, for example, Tishkevich v. Russia, no. 2202/05, §§ 25-26, 4 December 2008, and Sutyazhnik v. Russia, no. 8269/02, § 35, 23 July 2009). The mere possibility of there being two views on the subject is not a ground for re-examination (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003-IX).

31.  In the present case, the final and binding decision of 31 August 2011, by which the amount of the applicant’s remuneration had been determined, and the final and binding distribution decision of 14 December 2012 were both quashed as a result of the extraordinary appeal lodged by the Prosecutor General, who considered that the courts had wrongly assessed the date of conclusion of the examination hearing and had therefore applied incorrect legislation. It is also apparent from the Supreme Court’s reasoning that, if not quashed, the decision of 31 August 2011 would have infringed the property rights of the creditors.

32.  The Court is called upon to ascertain whether the above-mentioned interference with a final decision was compatible with the guarantees of Article 6 § 1 of the Convention, in particular with the principles of the rule of law and legal certainty inherent in that provision. In line with its case-law (see, for the applicable principles, DRAFT - OVA a.s., cited above, §§ 77‑78, with further references), the Court finds it appropriate to examine whether there has been any circumstance of a substantial and compelling character to justify a departure from the principle of legal certainty, according to which, where the courts have finally determined an issue, their ruling should not be called into question.

33.  The Government submitted in their observations that the alleged fundamental errors in the instant case had stemmed from the fact that the applicant, as the insolvency administrator, had incorrectly calculated his remuneration, that he had enriched himself to the detriment of the creditors and that the lower courts had failed to rectify those errors. In the Government’s view, these qualified as circumstances of a substantial and compelling character which justified the quashing of a final decision in the applicant’s favour.

34.  The Court is of the opinion that the issues mentioned by the Government pertain to the legal assessment of the matter and raise no more than ordinary questions of law, the resolution of which falls within common judicial activity. It observes in this connection that the same legal questions addressed by the Supreme Court when granting the Prosecutor General’s extraordinary appeal lodged on behalf of the creditor had been raised by the same creditor throughout the previous proceedings before the courts, including before the Supreme Court acting as a court of appeal (see paragraph 9 above). In such circumstances, the Court considers that the extraordinary appeal should rather be seen as a further appeal or, in other words, an appeal in disguise within the meaning of the Court’s case-law (see, for example, Ryabykh, cited above, § 52).

35.  In these circumstances, the Court sees no particular grounds for departing from the general premise that, in accordance with the principle of legal certainty, where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).

36.  There has accordingly been a violation of Article 6 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

37.  The applicant complained that his right to the peaceful enjoyment of his possessions, as well as those of the creditors in the insolvency proceedings, had been violated as a result of the quashing of a final decision. He relied on Article 1 of Protocol No. 1, the relevant part of which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”Admissibility

38.  Relying on the Court’s judgment in Kopecký v. Slovakia ([GC], no. 44912/98, § 52, ECHR 2004-IX), the Government objected that a property interest could only be regarded as a “claim” within the meaning of the Court’s case-law if it had a sufficient basis in domestic law. In their view, this was not so in the present case. They referred to the Supreme Court’s decision of 13 December 2016, according to which only property acquired in accordance with the correct application of the domestic law was protected. The applicant, a lawyer acting as the insolvency administrator, had been fully aware of the existing legal framework and had been under a duty to submit his final report in compliance with the law. In spite of that, he had failed to do so and hence there could not have been any interference with his property rights.

39.  The Government reiterated that an insolvency administrator had a specific role in insolvency proceedings, similar to that of a judicial enforcement officer (súdny exekútor) in enforcement proceedings. In that regard, they referred to the Court’s decisions in Mihal, which had both concerned complaints about the remuneration of a judicial enforcement officer and had both been declared inadmissible ratione materiae with the provisions of the Convention (the Government cited Mihal v. Slovakia (dec.), no. 23360/08, 28 June 2011, and Mihal v. Slovakia (dec.), no. 31303/08, 28 June 2011). The Government submitted that even though in the present case the final decision had granted the applicant remuneration in a specific amount, his claim to receive that amount had had no basis in domestic law or the established practice of the domestic courts. Since the impugned decision had in fact been unlawful and, as such, had had to be quashed, it had not led to the creation of any “possessions”. In the Government’s view, this part of the application was thus incompatible ratione materiae with the provisions of the Convention.

40.  Referring to the Court’s case-law in Beyeler v. Italy ([GC], no. 33202/96, ECHR 2000‑I) and Broniowski v. Poland ([GC], no. 31443/96, ECHR 2004‑V), the applicant argued that he had had a legitimate expectation of obtaining remuneration for the work he had carried out as a lawyer and as an insolvency administrator.

41.  The Court has already established that a judgment debt can be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and Ryabykh, cited above, § 61).

42.  In so far as the Government sought to compare the present case with the two decisions in Mihal (see paragraph 39.   above), the Court observes that in those cases the applicant’s claims had been wholly or partly dismissed by the ordinary courts, that is, they had not been recognised by the courts in a final and binding decision. Conversely, in the present case, the decision of 31 August 2011 had indeed recognised the legal basis for the applicant’s remuneration in the amount of EUR 139,376.80. The decision thereby established a clear and specific pecuniary entitlement for the applicant, which falls under the protection of Article 1 of Protocol No. 1. Therefore, the Government’s objection must be dismissed.

43.  In so far as the applicant complained of a violation of the property rights of the creditors, it follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

44.  The Court notes that the applicant’s own complaint under the latter provision is closely linked to that under Article 6 § 1 of the Convention, which it has already examined and declared admissible (see paragraph 25 above). Accordingly, since the applicant’s complaint under Article 1 of Protocol No. 1 is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, it must be declared admissible.Merits

45.  The applicant maintained that the unjustified interference of the Supreme Court, which had been contrary to Article 6 § 1 of the Convention, had also breached his right to the peaceful enjoyment of his possessions. He reiterated that he had calculated his remuneration in accordance with the applicable law and that the amount had been approved by the courts. He asserted that as a result of the retroactive application of the amended Decree by the Supreme Court in its quashing decision, and consequently by the Regional Court and the Supreme Court acting as a court of appeal, the amount had been reduced by EUR 80,466.50, seven years after the original sum had been paid to him (see paragraphs 10 and 19 in fine).

46.  The Government argued that the interference with the applicant’s property had been carried out in accordance with the domestic law and with the aim of protecting the rights and interests of the parties to the insolvency proceedings. They asserted that, in the circumstances of the case, the quashing of the final decision had been justified in order to strike a fair balance between, on the one hand, the interests of the applicant as the insolvency administrator to be remunerated for the work carried out and, on the other hand, the interests of the creditors as parties to the proceedings to have their claims satisfied to the greatest extent possible. They did not dispute the applicant’s claim per se, but rather the amount which he had been granted.

47.  The Court reiterates that, in general, quashing a judgment giving rise to a “possession” after it has become final constitutes an interference with the beneficiary’s right to the peaceful enjoyment of that possession (see, for example, Brumărescu, cited above, § 74; Agrotehservis v. Ukraine, no. 62608/00, § 45, 5 July 2005; and DRAFT - OVA a.s., cited above, § 91).

48.  In the present case, the Court is mindful of the fact that the quashing of the previous decision in the applicant’s favour created a situation of legal uncertainty, essentially removing the res judicata protection of the recognition of his remuneration in a specific amount and leading to a reconsideration of that matter. Thus, even though the quashing of the impugned decision did not directly determine the outcome of the case, it constituted an interference with his right to receive that specific amount of remuneration.

49.  Nevertheless, the Court observes that although the quashing of a final and enforceable decision in the applicant’s favour may affect the right to the peaceful enjoyment of his or her possessions, it does not automatically lead to a violation of Article 1 of Protocol No. 1 (see, generally, Industrial Financial Consortium Investment Metallurgical Union v. Ukraine, no. 10640/05, §§ 168 and 200, 26 June 2018). The Court must therefore ascertain whether, in the present case, the interference was justified or not, and in particular whether it struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see DRAFT - OVA a.s., cited above, § 91, with further references).

50.  As regards the lawfulness of the measure complained of, the Court observes that the extraordinary appeal proceedings that led to the quashing of the final decision in the applicant’s favour were initiated under Articles 243e et seq. of the 1963 Code of Civil Procedure (Law no. 99/1963 Coll.) by the Prosecutor General, who considered that the courts’ decisions had been based on an incorrect assessment of the legal provisions to be applied (see, for domestic legislation on extraordinary appeals, DRAFT ‑ OVA a.s., cited above, §§ 44-52). The quashing of the final decision by the Supreme Court was then based on Article 449 of the new Code of Civil Contentious Procedure (see paragraph 23 above). The Court is thus satisfied that the interference with the applicant’s property rights was provided for by law, as required by Article 1 of Protocol No. 1. Similarly, the Court accepts the Government’s argument that the aim of the interference was to protect the rights and interests of the parties to the insolvency proceedings.

51.  It remains to be ascertained whether the interference satisfied the requirement of proportionality for the purposes of Article 1 of Protocol No. 1. In particular, the Court has to assess whether the power to initiate and conduct an extraordinary review was exercised by the authorities so as to strike, as far as possible, a fair balance between the interests of the applicant and the interests of the creditors in having their claims satisfied to the greatest extent possible. In that regard, the Court must take into account the proceedings that followed the quashing of the final decision and the ultimate impact on the applicant’s property rights.

52.  The Court has on many occasions emphasised the particular importance of the principle of “good governance”. This requires that where an issue pertaining to the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, the public authorities must act in good time and in an appropriate and above all consistent manner (see Beyeler, cited above, § 120; Pyrantienė v. Lithuania, no. 45092/07, § 55, 12 November 2013; and Vukušić v. Croatia, no. 69735/11, § 64, 31 May 2016). The good-governance principle should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. However, the need to correct an old “wrong” should not disproportionately interfere with a new right which has been acquired by an individual relying on the legitimacy of the public authority’s action in good faith (see Beinarovič and Others v. Lithuania, nos. 70520/10 and 2 others, § 140, 12 June 2018).

53.  Having examined the material in the case file and the parties’ submissions, the Court is of the opinion that the authorities did not, in the present case, disproportionately interfere with the applicant’s right to the peaceful enjoyment of his possessions. The reason for the quashing of the final decision in the applicant’s favour was the need to fulfil the aim of the insolvency proceedings, that is, to satisfy the creditors’ claims to the greatest extent possible and hence to protect their property rights. The domestic authorities carried out a balancing exercise between the applicant’s right to remuneration and the right to the peaceful enjoyment of their possessions of the creditors. In the proceedings that followed the quashing of the final decision, the applicant’s claim for remuneration for the work carried out, which had never been contested per se, was still granted, although in a much lower amount, calculated in accordance with the applicable domestic law. The applicant, a lawyer appointed as the insolvency administrator, was aware or at least ought to have been aware of the relevant legal framework. In addition, the domestic courts explained the manner in which they had interpreted the law and provided the applicant with sufficient answers to his arguments and objections. From a procedural point of view, those proceedings do not seem to have been arbitrary or manifestly unreasonable. Taking all of the above into account, the Court is of the opinion that the applicant was not made to bear an individual and excessive burden, all the more so since he did not assert that the obligation to pay back the difference between the amounts several years later had represented such a burden to him (see, mutatis mutandis, Industrial Financial Consortium Investment Metallurgical Union, cited above, § 199).

54.  The foregoing considerations thus lead the Court to conclude that the quashing of the final decision upon an extraordinary appeal on points of law did not amount, in the present case, to an unjustified interference with the applicant’s property rights as guaranteed by Article 1 of Protocol No. 1 to the Convention.

55.  There has accordingly been no violation of that provision.APPLICATION OF ARTICLE 41 OF THE CONVENTION

56.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

57.  Referring to the just satisfaction granted by the Court in DRAFT ‑ OVA a.s. (cited above, § 98), COMPCAR, s.r.o. (cited above, § 82) and PSMA, spol. s r.o (cited above. § 86), the applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. He did not claim any specific amount in respect of costs and expenses.

58.  The Government contested the claim as excessive. They did not discern any causal link between the violation alleged and the claim in respect of non-pecuniary damage.

59.  The Court considers that the applicant must have suffered non‑pecuniary damage on account of the violation of Article 6 § 1 of the Convention. Making its assessment on an equitable basis, it awards the applicant EUR 3,900 in respect of non-pecuniary damage, plus any tax that may be chargeable.

60.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaints concerning Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the applicant’s right to the peaceful enjoyment of his possessions admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Dmitry Dedov
Deputy RegistrarPresident

Full & Egal Universal Law Academy